Justices consider prayers in government forums

November 6, 2013 10:53 PM

By Robert Barnes / The Washington Post

WASHINGTON -- The Supreme Court on Wednesday struggled with how government can accommodate the nation's religious history without endorsing beliefs not shared by all, as the justices considered a New York town's practice of opening its meetings with a prayer.

The court 30 years ago decided that legislatures may open their sessions with a prayer. But Wednesday's oral arguments considered whether different rules might be needed for a local council meeting, where citizens often come to ask for favors or official action.

A federal appeals court said the town of Greece, N.Y., had improperly identified itself with Christianity through the prayers offered at its meetings over a 10-year period.

As always, Wednesday's session began with the Supreme Court marshal's intonation, "God save the United States and this honorable court."

But Justice Elena Kagan immediately asked Thomas Hungar, representing the town, whether it would have been proper for the chief justice to have asked all in attendance to stand, bow their heads and listen to a prayer that called upon "the saving sacrifice of Jesus Christ on the cross."

Mr. Hungar said he did not think so, but that the country had a "different history" about prayers opening legislative sessions. It stretches back to the initial Congress that wrote the First Amendment's prohibition against establishing a national religion -- but also its protection of the free exercise of faith, he said.

Both Justice Kagan and Justice Ruth Bader Ginsburg wondered about the difference between legislative bodies such as Congress, where the audience members are spectators, and a town council, where citizens often come to ask for specific action, such as a zoning variance.

University of Virginia law professor Douglas Laycock, representing two town residents who objected to the prayers, said that was what distinguished the case from the court's 1983 decision in Marsh v. Chambers -- a ruling that Nebraska had not violated the Constitution by employing a Presbyterian minister for 16 years to lead the legislature in prayer. He said the town of Greece's practice forced citizens who might not agree with the prayer to either participate against their will or irritate council members from whom they hoped to receive favorable action.

Mr. Laycock said the town should be allowed to offer prayers, but that those prayers should "stay away from points on which believers disagree."

Court conservatives said that would simply raise more problems, because it could lead to what Justice Anthony Kennedy called "state censorships."

Chief Justice John Roberts asked who in government would decide which prayers went too far. Justice Samuel Alito repeatedly asked Mr. Laycock for an example of a prayer that would satisfy all in such a religiously diverse nation.

The lawyer acknowledged that it would be difficult.

Justice Antonin Scalia said there was a competing interest on the side of council members, who want to invoke divine guidance as they "undertake a serious governmental task."

The council, which previously opened its meetings with a moment of silence, drew its volunteer chaplains from a list of churches in town. It said anyone would have been welcomed, but it did not publicize the opportunity. The council neither created rules for the prayers nor screened them beforehand.

All agree that the overwhelming number of prayers over the approximately 10 years covered by the suit were offered by Christians, and most contained direct references to Christianity.

When the case reached the 2nd U.S. Court of Appeals in Manhattan, a unanimous panel of the court said it was not enough to view the town's actions through the lens of the Marsh case.

The appeals court said the Supreme Court had ruled in a subsequent case involving a creche display that governments must be careful about practices "that have the effect of affiliating the government with any one specific faith or belief."